, NAIROBI, Kenya, Sep 30 – The government argues that the Employment and Labour Relations Court did not have any jurisdiction whatsoever to award teachers a pay increase of between 50 and 60 percent.
While making submissions during the appeal hearing on Wednesday morning, Attorney General Githu Muigai contended that Justice Nduma Nderi’s description of the matter as an economic dispute is not recognised anywhere in law.
In the AG’s opinion, the Judge ought to have taken seriously the role played by the Salaries and Remunerations Commission pointing out that its advisory role was important to the proceedings.
“And even if it were considered and it is not that the judge as conciliator can give an award, the republic contends that he would have been compelled to take into account the expert testimony of the Treasury which is in charge of the budget of the Republic of Kenya,” he stated.
This argument is the government’s main defence in its appeal against the pay rise awarded to the teachers and which Githu described as ‘totally untenable’ and one that can crush the economy – as earlier stated by a government economist.
“This is the chief economist that the Republic relies on in these matters. He said that such a decision would make other sectors of the Kenyan economy begin to shut down. He said under oath that the country would be forced to go into heavy borrowing and citizens would need to be taxed four times higher,” Muigai pointed out.
The AG is now seeking the Court of Appeal’s order to quash the earlier decision of the Industrial Court which awarded the teachers a pay increase.
His sentiments were echoed by the Teachers Service Commission (TSC) lawyer Fred Ngatia who stated that the matter should have gone before a conciliator before being taken up by the judiciary.
“The parties in a dispute cannot go to court and give it jurisdiction which it does not have. Without any jurisdiction, the court cannot proceed with a matter. By an Act of Parliament, conciliation was taken away from judges and given to another party. As a result of this, the proceedings were a nullity since the court acted without jurisdiction. Jurisdiction cannot be conferred by consent of the parties,” he said.
TSC insists that it is not in contempt of the court as claimed by the Kenya National Union of Teachers which has declined to call off the month-long strike.
“TSC has not acted in contempt of court in any way. The Commission did everything in its power to resolve the dispute. Any such calls for contempt of court on public officials should be taken with the seriousness it deserves and appropriate action taken,” Ngatia said.
Geoffrey Obura also acting for TSC stated that any award by a court of law must be preceded by voluntary negotiations.
“In this instance, the suit needs to be referred to conciliation. The people who are to be appointed as conciliators must be public officers and not judges. It is only after conciliation that a matter can be referred to the judiciary for arbitration,” he stated.
He further argued that in the current dispute, TSC had never made an offer to award teachers between 50 and 60 percent salary increment and urged that the matter needed to be approached with a lot of caution.
On Tuesday, The Court of Appeal dismissed an application by KNUT which sought to have three judges hearing their case disqualify themselves.
The judges stated that the union had not given any convincing reason why they should not continue hearing their appeal, as argued by lawyer Ahmednasir Abdullahi.
In an affidavit KNUT Secretary General Wilson Sossion claimed that the Court of Appeal President Paul Kihara was heard as saying that President Uhuru Kenyatta watched last week’s proceedings on television and was not happy with the adjournment to today.
Following the ruling, Abdullahi has excused himself although KNUT will continue to be represented by Paul Muite despite their apprehension.
The Union had expressed concern that as a result of external influence, the final determination with the involvement of the three judges might not be independent.